Mental health and the world of work: a comparative analysis of the legal frameworks governing categories of mental health conditions

[摘要] English: Mental health conditions such as depression are common in the world of work. Despitehaving been a significant concern for centuries already, these conditions are becomingparticularly prevalent in modern society and workplaces across the globe. Althoughthey affect the legal realm in many different areas, mental health conditions are oftenmisunderstood and inappropriately dealt with from a legal perspective. Inevitably, thiswill give rise to concerns in the employment environment.Depression appears to be the most prevalent of all the categories of mental healthconditions, with the most noteworthy impact on employment. Its symptoms aredebilitating and impair sufferers' ability to fulfil the inherent requirements of their jobs.In addition, the medication used to treat and manage mental health conditions, suchas antidepressants, also leads to various debilitating side effects, which may furtheraffect the person's ability to function efficiently at work.The United Nations (UN) Disability Convention has set the international benchmarkfor all jurisdictions in addressing mental disabilities, discrimination based on mentalhealth as well as reasonable accommodation for these conditions. The conventiondisplays support for the social model of disability and a substantive approach toequality. The International Labour Organisation (ILO) has in turn also played asignificant role in offering guidance for domestic legal frameworks to address mentalhealth concerns in the workplace. Against the backdrop of international instrumentssuch as those of the UN and the ILO, this study takes an in-depth look at the approachto mental health conditions in employment in the jurisdictions of South Africa, theUnited States (USA) and the United Kingdom (UK). More specifically, the researchanalyses the various jurisdictions' take on mental health conditions as disabilitiesunder the law, the disputability of workplace discrimination based on mental health,and the procedures and measures to provide reasonable accommodation foremployees with mental health conditions.Across the jurisdictions, depression in particular and mental health conditions ingeneral may amount to legally recognisable disabilities if they can satisfy the elements of the specific disability definition used. In South Africa, the USA and the UK, thesedefinitions and elements differ. These three jurisdictions' legal frameworks do howeveracknowledge that in order for a mental health condition to attract disability status, thecondition must be recognisable and must have a particular impact on the life oremployment potential of the employee or job applicant within a particular timeline.Although the Constitution of the Republic of South Africa, 1996, requires a substantiveapproach to equality and, thus, the consideration that mental health conditions suchas depression may amount to legally recognisable disabilities, South African disabilitylaw has been slow to give effect to this, lagging slightly behind the USA and UK in thisregard. Consequently, the South African legal position on mental disabilities isunderdeveloped and ambiguous.Due to the significant stigma and prejudice associated with mental health conditions,they often form the basis for discrimination in both society and the workplace.Discrimination based on a person's mental health status impairs the individual's rightto dignity, equality and non-discrimination, and may potentially even aggravateexisting mental health conditions. In the USA, UK and South Africa, discriminationbased on mental health may be challenged on the protected ground of disability,provided that the condition in question satisfies the legal requirements to constitute amental disability. The UN Disability Convention along with disability-specific legislationin the USA and UK extensively governs this consideration. South Africa, on the otherhand, does not have any legislation giving effect to the UN Disability Convention. Yet,the Constitution and the Employment Equity Act do enable victims to challengediscrimination based on mental health on either the protected ground of disability, oras an unlisted analogous or arbitrary ground of unfair discrimination. The latter doesappear more viable in light of the disadvantage suffered by these persons because oftheir conditions.Under the South African legal framework, reasonable accommodation for mentalhealth conditions is based on two primary foundations: Firstly, reasonableaccommodation is available to people with mental disabilities as an affirmative actionmeasure; secondly, reasonable accommodation may possibly also be available topersons with mental health conditions in general, since it essentially constitutes a nondiscriminationprinciple. Reasonable accommodation in the comparative jurisdictionsof the USA and the UK, on the other hand, flows primarily from their respective disability-specific legislation. To provide effective reasonable accommodation on thebasis of mental health, several factors need to be considered in an interactive processbetween employer and employee. These include occupational health and safety, theintersection between reasonable accommodation and incapacity, thedisproportionate-burden threshold, and the various forms of reasonableaccommodation that may best suit the mental health condition in question, given itsspecific symptoms and diagnostic features.This study emphasises the importance of adequate and effective consideration ofmental health conditions under the legal frameworks of jurisdictions worldwide due tothe global prevalence of these conditions, their devastating effects, and thedisadvantage experienced by those who suffer from these conditions. Based on thecomparison with the USA and the UK, it is concluded that the South African legalframework in relation to mental health conditions needs to be urgently developed inorder to promote clarity and certainty regarding the official legal position on theseconditions, as well as to safeguard the rights and interests of employees with mentalhealth conditions in the workplace. As an added, more practical contribution, the studyconcludes with a proposed draft code of good practice on the handling of mental healthconditions in the workplace, a draft set of interpretative guidelines for the South Africanjudiciary, Department of Labour, employers and employees in dealing with theseconditions in the world of work, as well as a draft workplace policy on mental healthconditions for potential adoption by employers.

[发布机构] University of the Free State